Why Stanford Law Students Were Right to Protest

Less than a week after Judge Kyle Duncan’s controversial appearance at Stanford Law School, another public servant, Congressman Ted Lieu, spoke at Stanford. “Making sure that we still have a democracy is the most pressing issue,” Lieu said. “I don’t fear Donald Trump winning, I fear him losing because he could do the same thing again, and try to get his supporters to go take the streets.” The fear is that the basic rules that govern our democracy will not be followed.

My guess is that you didn’t know about Lieu’s appearance but that you might have heard about Duncan’s. Within hours of Duncan’s, the ever-proliferating Substacks were on it. Rod Dreher, who champions what he calls “Florida’s ‘Orban’ Renewal Project,” held that “it was a revolt of the elites, a pogrom against free speech and civil discourse carried out by some of the nation’s most privileged,” and that the incident was “a stark warning about the potentially totalitarian future of the U.S.” National Review, the Daily Mail, Fox News, and The American Conservative followed, with mainstream outlets not far behind. How this national conversation is created — and what it portends — is something those of us who care about higher ed cannot afford to ignore. We’re all witnesses to an astonishingly effective coordination of power politics by people who have zero respect for the rules that govern democracies, and — if possible — even less respect for the rules that govern colleges and universities.

Since about 2015, a libertarian-fueled discourse about “wokeness” has paved the way for the authoritarian politics we see in Florida, Texas, and elsewhere. We laughed ruefully when Chris Rufo brazenly advertised his strategy of freezing “the brand” of critical race theory so that it could become America’s bogeyman. But now, years later, we in higher ed have not come to terms with an unfortunate fact: Rufo succeeded. The crude caricaturing of all things higher ed is now a major plank in the campaigns of all the politicians who sprang from Trump’s clown car, including those running against the former president. Ron DeSantis’s HB 999 would put Florida’s public colleges and universities under the direct control of the ruling political party. That is the kind of unmediated power over higher ed routinely wielded in one-party states like China but generally understood to be deeply compromising to the integrity of knowledge in democracies.

To the extent that we imagine we have “rules” for this moment in which colleges are under concerted attack, we end up enforcing a quietism that amounts to surrender. Those laying siege to our institutions do not subscribe to the same set of rules. “We have to get out of this idea that somehow public university system is a totally independent entity that practices academic freedom,” Rufo says in “Laying Siege to the Institutions,” a manifesto setting out the conservative alternative to the conventional rules. Calling the idea of academic freedom “a total fraud,” Rufo adds, “we get in there, we defund things we don’t like, we fund things we do like.”

Call the Stanford Law students “privileged boors” or “snowflakes” or a “mob” — any of the derogatory and often contradictory names deployed by the right-wing press — but they grasp the moment we’re in better than those of us wringing our hands about the nationwide assault on higher ed but standing helplessly by as it gains momentum. They understand something existential is at stake. For some — people in the LGBTQ community who wish to marry whom they love and who seek judges with the minimum of respect for their personhood — the threat of a judge like Duncan is, very obviously, existential. But the likes of Rufo (whose blog posts Duncan cites in his legal dissents as if they were credible academic sources) threaten colleges as well.

Duncan participates in the now well-oiled judicial machinery of advancing political power through caricature, exaggeration, and doublespeak. It’s extraordinarily difficult for anyone to call this out while claiming to do so from a position of political neutrality. But a great deal rides on our understanding that this is a Catch-22. The risk of appearing partisan when fighting for the integrity of nonpartisan-controlled knowledge is not one we can run from.

This brings us to the terrible bind Tirien Steinbach, an associate dean for diversity, equity, and inclusion, was in on the day of Duncan’s remarks. When the protesters made it impossible for Duncan to begin, he asked for an administrator to intervene. For the next six minutes or so, Steinbach did a remarkable job clearing the way for Duncan while also addressing the very real concerns that the students have — and that all of us should have when it might appear that colleges are normalizing a dehumanizing political agenda. The right-wing press highlights one particular thing she said: “Is the juice worth the squeeze?” Here are some of the other things she said:

For many people in this law school who work here, who study here, and who live here, your advocacy, your opinions from the bench, land as absolute disenfranchisement of their rights … In my role at this university, my job is to create a space of belonging for all people in this institution, and that is hard and messy and not easy, and the answers are not black or white or right or wrong.

In his newsletter on what he calls “The Stanford Law Debacle,” The Chronicle’s Len Gutkin says that Steinbach expressed “fulsome sympathy” for the protesters. Steinbach did express sympathy, but if you want to call it “fulsome” (defined as “complimentary or flattering to an excessive degree”), you have to see in it a cravenness I don’t. In the video circulating, I see someone trying to accomplish two things. First, she wishes to avoid the appearance of institutional complicity by tacitly condoning a hyperpartisan politics that uses dishonest tactics to gain and hold power, and seeks to deny civil liberties to some of the nation’s citizens. Second, she wishes to open up a seemingly impossible space by acknowledging the profound forbearance involved in granting someone who would not grant you basic rights the right to hold forth where you live and learn. The only way to decently ask such a thing of people is by first acknowledging the double standard implicit in asking it.

Depending on how harshly you judge the continuing trickle of heckling discontent, she did succeed in opening up this almost-impossible space. The lead organizer of the student protest stood up after Steinbach spoke and asked that half the dissenting students leave and half stay but give Duncan space to speak. Duncan then proceeded straight to Q&A.

Gutkin concludes his piece by quoting a Samuel Moyn tweet: “The campus left hands another win to the national right — without learning that principle and strategy do not unerringly align.” But will a magical alignment of principle and strategy — somehow unerringly knowing when to hold them and when to fold them — save higher ed? The uncomfortable fact is that colleges are once again places of struggle. Academic freedom protects ideas, departments, and programs, but it was struggle that led to some of these academic goods’ coming into being in the first place. Think, for example, about 1968: “At San Francisco State, 80 percent of the student body supported the strike that ultimately led to the creation of a Black-studies department,” Noliwe M. Rooks wrote in these pages in 2006. Faculty members need to step out of our comfort zone at times to stand with students. These moments require organized collective action — petitions, protests, boycotts, teach-ins, walkouts, and strikes. They also require faculty members in blue states to find ways to act in solidarity with counterparts in red states.

Yesterday the Stanford Law School dean Jenny S. Martinez issued a letter reiterating that the protest violated a university “policy on disruption.” Steinbach, meanwhile, is now on leave. Martinez invoked the University of Chicago’s 1967 Kalven Report to support her position that neutrality and the protection of Duncan’s speech are also how universities can continue to support marginalized groups. There is much to admire about Martinez’s well-reasoned letter, but, by ignoring the larger national context in which these incidents increasingly occur, it forfeits a crucial opportunity to broaden the discussion.

“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints,” the report states. But it also says: “From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.” Factions in media, law, and politics that want to throw out the old rulebook, in which academic freedom meant something — namely, relative independence from manipulative power politics — pose an existential threat to the mission of universities.